FISA amendment forces appeals court to punt on wiretap case

In a two-sentence opinion (PDF) released today, the Court of Appeals for the Ninth Circuit finally acted on the long-stalled warrantless wiretapping lawsuit, Hepting v. AT&T. The three-judge panel that heard arguments in the case over a year ago made no decision on the substance of the case, instead booting the suit back to a lower court for further action pursuant to the controversial FISA Amendments Act signed into law last month.

The court's unusually long silence in the case is seen by most observers as stemming from the judges' reluctance to interfere with the ongoing battle in Congress over whether to extend retroactive immunity to telecoms that participated in the National Security Agency's program of warrantless surveillance, a closely-held secret until The New York Timesbroke the story back in 2005. The Electronic Frontier Foundation had brought the class-action suit on behalf of AT&T customers, arguing that the firm violated users' privacy by turning their information over to the spy agency without the court orders required by the Foreign Intelligence Surveillance Act. The government had intervened, arguing that the very existence of the program was too sensitive to be discussed even in closed court. District Judge Vaughn Walker rejected that argument back in 2006, at which point the case passed to the appeals court, where it had languished until today.

Under the FAA, telecoms complicit in warrantless surveillance are immunized from liability, provided the attorney general issues a written certification to the effect that their cooperation was pursuant to a written directive reassuring them that the NSA program had been determined to be lawful. Unless the new FISA amendments are themselves invalidated—and a legal challenge to other provisions of the new law is already underway—that would seem to spell the end for the EFF's suit.

Last week, however, the group did make one last attempt to snatch a legal victory from the jaws of legislative defeat. EFF attorneys filed a motion seeking dismissal of the appeal on the grounds that the government was committed to affirming the participation of specific firms in NSA surveillance in order to establish immunity within the FAA. Thus, they argued, the government could no longer claim that the very fact of a particular company's participation was a sensitive state secret. If the retroactive immunity provision of the FAA were later struck down for any reason, that would leave the door open to a renewed suit. The appeals court, however, declined to render a verdict either way on that question.

In light of Congress' decision to afford the telecoms retroactive immunity, the EFF suit now seems all but certain to be thrown out. But retroactive immunity itself—the after-the-fact invalidation of a vested tort claim—remains legally controversial. Since the Ninth Circuit at least declined to actively endorse the government's "state secrets" argument, EFF attorney Kurt Opsahl called the result "good news," and indicated that the group's next step would be to seek to "convince the court that the retroactive immunity bill is unconstitutional."